865 F. 2d 1329 - Farese v. United States Parole Commission

This case was reviewed on the record on appeal from the United States District Court for the District of Columbia and was briefed and argued by counsel for the parties. The issues presented have received the court's full consideration; they occasion no need for a published opinion. See D.C.Cir.R. 14(d).

Appellant, a federal prisoner incarcerated outside the jurisdictional limits of the District of Columbia, filed suit in the district court for the District of Columbia, claiming that provisions of the Sentencing Reform Act of 1984, Pub.L. No. 98-473, 98 Stat.1987 (codified as amended at 18 U.S.C. Secs. 3551-3586 (1982 & Supp.IV 1986)), now make him eligible for parole and entitle him to have the United States Parole Commission set a date certain for his ultimate release. The district court dismissed appellant's claim for failure to state a claim for which relief can be granted.

As appellant's claim sounds in habeas, he must pursue his claim through a petition for writ of habeas corpus in the federal district court in the jurisdiction in which he is incarcerated, with the warden of the federal penitentiary in which he is incarcerated named as defendant. See Chatman-Bey v. Thornburgh, No. 84-5901, slip op. (D.C.Cir. Dec. 23, 1988) (en banc). On consideration of the foregoing, it is

ORDERED AND ADJUDGED by the court that the judgment of the district court from which this appeal has been taken be affirmed. The district court is directed to amend its judgment to state that dismissal of appellant's claim is without prejudice to appellant bringing his action in the appropriate jurisdiction.

The Clerk is directed to withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing. See D.C.Cir.Rule 15. This instruction to the Clerk is without prejudice to the right of any party at any time to move for expedited issuance of the mandate for good cause shown.